State v. Byrne

• Decision Date: 26 December 1979
• Docket Number: No. 39549,39549
• Citation: 595 S.W.2d 301
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lawrence Wayne BYRNE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 301

595 S.W.2d 301

STATE of Missouri, Plaintiff-Respondent, v. Lawrence Wayne BYRNE, Defendant-Appellant.

No. 39549.

Missouri Court of Appeals, Eastern District, Division Two.

Dec. 26, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 15, 1980.

Application to Transfer Denied April 8, 1980.

William J. Shaw, Public Defender, Daniel L. McCleave, Robert A. Cosentino and Frank Anzalone, Asst. Public Defenders, Clayton, for defendant-appellant.

Jerrold H. Chapnick, Asst. Pros. Atty., Carondelet, George R. Westfall, Pros. Atty., Clayton, John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Judge.

Defendant appeals a jury conviction of murder in the first degree, attempted robbery first degree, armed criminal action, and assault with intent to kill with malice. Because the Second Offender Act, § 556.280, RSMo 1969, was applicable the court sentenced defendant. Punishment was assessed at life imprisonment for murder in the first degree, five years for attempted robbery, fifteen years for armed criminal action and life for assault with intent to kill with malice aforethought.

Arthur and Marjorie Zbaren have operated the Horstmeyer Jewelry Store at 7246 Natural Bridge for 27 years. At about 10:30 on the snowy morning of January 6, 1977, a man with a cane entered the store and asked Mrs. Zbaren to show him watches that would be suitable for his young son. As it was not customary for Mrs. Zbaren to show watches she called her husband to the front of the store where the watch display case was located. Upon her husband's arrival, Mrs. Zbaren went to the back of the store. Mr. Zbaren displayed a number of watches to this customer but the latter did not seem interested. The man with the cane then asked to see rings for his wife. Mr. Zbaren took two trays of rings from the safe and brought them to the counter for the customer's perusal. Here again the customer seemed disinterested.

At approximately 10:45 a. m., Arthur Ehrhard and another entered the store. Mr. Ehrhard had come to pick up a watch that the Zbarens' had repaired. The defendant walked immediately to the rear of the store. Suddenly, the man with the cane fell to the floor as if injured. While he was on the floor another customer, Mrs. Hall, entered the store. After Mr. Zbaren and Mr. Ehrhard helped this man stand up they heard Mrs. Zbaren call from the rear of the store, "Art, we have a problem." The two men turned and saw defendant pointing a gun at Mrs. Zbaren. The man with the cane was now also displaying a gun. Defendant then ordered all the occupants of the store to the rear of the building. He ordered the four not to look at his face and to stare directly at a display case while he frisked them for weapons. Upon being satisfied that they were not armed defendant ordered Mr. and Mrs. Zbaren, Mrs. Hall and Mr. Ehrhard to proceed to the basement. As Mrs. Zabren walked down the steps to the basement she was able to activate a silent hold-up alarm. Once in the basement the four captives were instructed to sit on the floor. Upon sitting, defendant taped each person's hands behind his or her back. Defendant then returned upstairs. Within seconds Mr. Zbaren freed himself and untied the others.

The silent alarm had alerted Normandy Police officers that the Horstmeyer Jewelry Store was being held-up. Officers Robert Hoelzel and Graham Burnley responded in separate cars. Officer Hoelzel arrived first. As Officer Burnley pulled into the parking lot, he saw Officer Hoelzel standing in the doorway of the jewelry store holding the door open. Officer Hoelzel called out to Officer Burnley, who had parked his automobile a short distance away, that he should alert the police dispatcher that the hold-up signal was a false alarm. Officer Hoelzel then entered the store. Officer Burnley cancelled the hold-up alarm and proceeded to the front door of the jewelry store. Still under the assumption that he had responded to a false alarm, Officer Burnley held the door open while defendant's accomplice, the man with the cane, exited. As this man left, Officer Hoelzel called out to his partner, who was still near the store's front door, "Watch out Graham, he has a gun." Officer Burnley's attention was immediately drawn to the rear of the store where he saw defendant with a gun. Officer Hoelzel reached for his service revolver. Almost immediately defendant started firing.

Officer Burnley quickly returned to his police cruiser and advised the dispatcher he needed assistance. As Officer Burnley looked back at the jewelry store he saw defendant standing at the door. Defendant then fired a shot at the policeman and began running. Officer Burnley responded by firing three shots. One of these shots hit defendant in the left side of his chest. The defendant ran to the end of the building, turned the corner, so as to be headed south, and was out of the policeman's sight. Officer Burnley did not pursue defendant. Instead he went inside the store and found Officer Robert Hoelzel fatally shot in the head.

Defendant's first contention is that the trial court erred in admitting the handgun. Defendant argues that the gun was inadmissible because it was the "poisonous fruit" of an improper custodial interrogation conducted before defendant had been advised of his Miranda rights.

The evidence shows that when Officer Burnley radioed for help Officer William Dee of the City of Wellston Police Department answered. Officer Dee was a canine handler and had two dogs in his possession. Upon arriving, Officer Dee took his dogs to the rear of the store to search for defendant's scent. After locating an area of blood covered snow the dogs proceeded in a southerly direction. The dogs hesitated at 7237 St. Andrews Place, indicating that the track had ended. Defendant had in fact stopped at 7237 St. Andrews Place and forced his way into the residence. This was the home of Mrs. Evande Ferrario, an elderly woman. Defendant was seriously wounded and had lost a great deal of blood. About thirty minutes after his arrival, defendant ordered Mrs. Ferrario to call an ambulance. Mrs. Ferrario complied. Captain Terry Milam, of the City of Northwoods Police Department, was immediately apprised of the request for an ambulance and proceeded directly to Mrs. Ferrario's residence. Upon arrival he was met by Chief Pirrone and Officers Dee and McBridge and Sergeant Hicks. Those policemen suspected the injured person at 7237 St. Andrews Place to be the defendant.

Captain Milam joined by Officers McBridge and Pirrone approached the front door of Mrs. Ferrario's home. When the three policemen knocked, Mrs. Ferrario answered the door. Captain Milam rapidly asked her a series of questions: "Is there someone hurt within the residence?" She nodded "Yes." "Do you know this person?" She shook her head "No." "Is he shot?" "Yes," she nodded. "Does he have a gun?" "Yes," she nodded. The woman was quickly placed in a position of safety away from the house and the police officers entered. Defendant was hiding in the kitchen. After the policemen identified themselves and ordered defendant to come out with his hands up the defendant moved into the kitchen doorway and fell backwards into the kitchen. Defendant collapsed due to shock and loss of blood. Defendant was immediately handcuffed and told he was under arrest. Officer Milam began advising defendant of his constitutional rights. The officer informed defendant of his right to remain silent but discontinued the warning because the officer believed that defendant was in shock, and therefore not capable of comprehending what was being said. The officer then asked defendant twice where the gun could be found. Defendant responded "Under a cookie dish." The officer went to a nearby table, raised a cake pan and found a .357 magnum. The gun was later identified as the weapon used to fatally wound Police Officer Robert Hoelzel.

At trial, the court sustained defendant's motion to suppress his statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, the court denied defendant's motion to suppress the product of those statements, the handgun found under the cake cover. Defendant argues that the gun, and all evidence relating to it, should have been excluded under the fruit of the "poisonous tree" doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The Miranda decision mandates that a person be appraised of his Fifth and Sixth Amendment rights prior to a "custodial interrogation." An individual is in custody when he had been deprived of his freedom of action. Orozco v. Texas, 394 U.S. 324, 327, 89 S.Ct. 1095, 1097, 22 L.Ed.2d 311 (1969). In the instant case there is no doubt defendant was in custody, he was handcuffed and informed he was under arrest. Thus, defendant was due a full reading of his Fifth and Sixth Amendment rights prior to being questioned. It is well settled that a statement made in violation of Miranda and evidence obtained as a result of that illegality is inadmissible. Miranda v. Arizona, 384 U.S. at 479, 86 S.Ct. at 1630. However, it is also firmly established that evidence seized as a result of impermissible police conduct does not "become sacred and inaccessible." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Thus exceptions to the exclusionary rule have been recognized. One such exception is that evidence may be admissible, despite police misconduct, if the causal connection between the illegality and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). A second exception is that the exclusionary rule has no application when knowledge of the illegally obtained evidence is gained from a source independent of the...